V.G. Bisht, J.
1. This Criminal Appeal has been preferred by the Appellant-State against the judgment and order dated 10th February, 2000 passed by the learned Additional Sessions Judge, Greater Mumbai in Sessions Case No. 409 of 1985 whereby respondents/accused were acquitted of the charges under Sections 307 r/w 34 of the Indian Penal Court (for short “IPC”). However, while granting the leave to appeal, this Court (Coram : Vishnu Sahai And D.S. Zoting JJ.) was pleased to grant leave to appeal only against Respondent No.1/Accused No.1.
2. Briefly stated the prosecution case is that at the relevant time the informant was serving in Godrej Soaps Limited, Vikhroli (East) as a helper. His father was also working as a watchman in the Godrej and Boyce Manufacturing Company Private Limited, Vikhroli. According to prosecution there was only one labour union under the name of “All India Godrej Soaps Federation Limited”. The Management Committee of the said union had decided to bring Bhartiya Kamgar Sena as a Labour Trade Union and so on 10th of July, it being a payment day, informant and the other members took membership fees of Rs.15/- each from the workers and were noting the names of the members on the separate paper as they wanted to see how many members were interested to bring the said union.
3. The prosecution next contended that accused Vijay Bhosale (A-1), also a worker of the company, noticed their activities and informed Shri. Kotwal, General Factory Manager of the company, who summoned informant and took over the paper on which the names of the workers were written. The prosecution alleged that even A-1 and two other workers had been to informant and threatened him with assault because of collection of fees in the company premises.
4. The prosecution then alleged that on 22/07/1984, at about 11.45 pm or so, the informant heard somebody knocking the door. The informant also heard the voice “HINDI”. On this, informant’s father enquired as to who was calling. On this, one Mr.Patade was told to have come to see informant from outside. The informant’s father then switched on the lights of the middle room and bathroom and opened the door. His father again made enquiries with the person standing in the compound as to who is he, to which he replied to be Mr. Patade. He and his mother also got up and while watching towards compound side, informant noticed A-1 giving blow of knife on the right side chest portion of his father. His father shouted when another person came from the outside of the compound and gave a blow of knife to his father’s left side chest, as a result informant’s father lost the balance and fell down in the compound. A-1 was also challenging the informant to come out but his father did not allow him to go out. Because of the shouts of informant’s father and his family members the neighbours got up but by the time the assailants ran away. The informant and the family members took the father to the Vikhroli Police Station. From there he was shifted to Rajawadi Hospital for treatment.
5. It appears from the record that the statement of the informant came to be recorded in the Hospital wherein he narrated the incident and gave the description of the assailants. On the basis of statement of informant C.R. No. 192 of 1984 for the offence punishable under Sections 307 r/w 34 of the IPC came to be registered by Vikhroli Police Station and after necessary investigation the accused were charesheeted.
6. The accused abjured their guilt and pleaded false implication.
7. Mr. Konde-Deshmukh, learned APP, submitted that the learned Trial Court failed to appreciate the evidence of informant who clearly mentioned the name of A-1 not only in his complaint but also in his evidence and, therefore, the criminal liability ought to have been fastened on A-1 by learned Trial Court. The learned APP then submitted that despite there being medical evidence, the learned Trial Court ignored the same. So also the disclosure statement of A-1 was not considered properly. Since approach of learned Trial Court in appreciating the prosecution evidence is highly unsatisfactory leading to the acquittal of A-1, it is necessary that the said error be rectified in the appeal and the accused be punished suitably.
8. Mr. Thorat, learned counsel for Respondent No.1/A-1, on the other hand, took exception to the submissions advanced by learned APP by submitting that the very presence of A-1 in the alleged incident is not established beyond reasonable doubt. Not only no eye witness is examined but the medical evidence also remained to be proved in accordance with law. Regarding alleged discovery of weapon of evidence, that is also not in consonance with requirement of law, argued learned counsel. Since the acquittal is based on fair and reasonable appreciation of evidence, the same should not be disturbed, urged learned counsel.
9. We have carefully gone through the testimonies of material witnesses, namely, PW-1 informant, PW-2 injured father (of informant) and PW-5 medical officer. Let us assay the testimonies of these material witnesses.
10. PW-1 Sharad Laxman Kadam, informant, stated in his evidence (Exh. 7) that in the year 1984 he was serving in Godrej Soaps and was residing along with family members, brother, namely, Yashwant, sister, namely, Mangala and mother Damayanti. On 22/07/1984 at about 11-45 pm while he was about to go to sleep, he heard a sound of knock on the door from outside and a call from outside saying “HINDI” His father then switched on the lights and went to open the door. It is his further evidence that he again heard the shouts as “HINDI” His mother then went ahead and he followed upto the door where his father was standing. He saw 3 persons had come to his house and they were accused. They were workers of Godrej Company. He was knowing them with their respective names and faces since before the date of the incident.
11. It is his further evidence that on 10/07/1984 when he was collecting the membership fees from the workers of the company, he was prevented by all the accused from collecting the same. It is his further evidence that when his father opened the door A-1 assaulted his father by means of a knife on the right side of the chest and also challenged him (informant) by saying that he should also come out of the house. At that point of time A-2 also assaulted his father by means of a knife on the left side of the abdomen. Because of commotion the neighbours gathered and the accused ran away. It is his further evidence that he and his mother then took his father to Vikhroli Police Station and from there to Rajawadi Hospital. In the hospital his statement came to be recorded. He then proved his complaint at Exh.8.
12. His evidence lastly shows that he had been to Vikhroli Police Station where identification parade took place and he identified all the three accused.
13. A plain reading of the evidence of informant vis-a-vis FIR would show the lack of corroboration. To begin with, his evidence clearly shows that on the day of alleged incident somebody knocked the door from outside saying that “HINDI”. It is nowhere so alleged in the complaint. What complaint shows is that somebody requested Sharad (informant) to open the door which is not so deposed in the substantive evidence. His evidence then shows that he again heard from the outside as “HINDI” which is again missing from the contents of FIR. His evidence then shows that his mother went ahead followed by him upto the door where his father was standing. This is again something which is not mentioned in the FIR.
14. All the above noted major omissions being important one are confronted to informant in his cross-examination. He insisted of having said first two omissions but failed to assign any reason as to why those material facts are omitted from his statement. Regarding last omission, his answer is that due to seriousness of incident he might have forgotten to disclose specifically in his FIR. The explanation so offered does not sound convincing.
15. The interesting part of his evidence then shows that he saw three persons who were from his company and he was knowing them by their names and faces. Quite surprisingly, the FIR shows otherwise. If we go by the FIR then A-1 is only identified by the informant as a person from his company whereas the remaining accused were unknown to him. If as per his examination-in-chief the informant was knowing the remaining two accused as well then there was no reason for him to brand those persons as unknown persons. When this fact was confronted to him in cross-examination he denied of having said so in his complaint about A-2 and A-3. Since the FIR is a signed document, it definitely amounts to contradiction and a major contradiction which otherwise reflects poorly on the part of informant.
16. One more reason to put him in bad light. His evidence also shows that in the TI parade he identified A-2 and A-3. Although, in the present appeal we are not concerned with the role of A-2 and A-3 but this is simply to point out questionable conduct of the informant in the light of his own evidence wherein he clearly stated that he was knowing A-2 and A-3 by their names and faces as they were the co-workers from his company. If he was well acquainted, which was, then there was no question of TI parade qua A-2 and A- 3. This speaks volumes about the conduct of the informant.
17. What is pertinent to note from the evidence of this witness is that despite their being two assaults from A-1 and A-2 respectively and the fact that the informant, his brother, mother and sister were very much present in the house, none of them ventured to come forward and tried to save injured father. They, more particularly the mother and the informant remained mute spectators though they were very much standing at the door, if we go by the evidence, where the informant's father was allegedly assaulted. All in all there doesn’t appear to be a ring of truth in the evidence of this material witness and if the trend of evidence of PW-2 father is anything to go by then there is every reason to believe that this witness had not seen the assailants at all.
18. PW-2 Laxman Wamanrao Kadam, the injured, stated in his evidence (Exh. 9) that on the day of incident i.e. on 22/07/1984 he was present in the house along with his family members, namely, Sharad (informant) and other son Yashwant, daughter Mangala and his wife. At about 11-45 pm he heard a sound of knocking on the front door of his house. He switched on the lights inside the rooms as well as lights of outside the rooms. He asked as to “dks.k vkgs” and reply came from outside “HINDI”. According to him, he then opened the door and then immediately thereafter he sustained a knife blow on his right hand side chest from the person who had come at the door. He cried and shouted and that time his daughter Mangal reached first in-time followed by his wife. Then his son Sharad (informant) came there but he directed him not to come forward. Meanwhile, other two persons came to him from outside and one of them assaulted on his left side chest by a knife. After the assault he enquired with his son Sharad “as to who were those assailants” and the informant told him that the assailants were workers in his factory. His son also disclosed the name of first assailant as Vijay Bhosale (A-1).
19 His evidence further shows that he was taken to police station and from there to Rajawadi Hosptial. His evidence lastly shows that on 22/08/1984 he was called in the police station for identification parade wherein he identified A-2 and A-3. In the court he identified A-1 as a person who had assaulted him by a knife in the first instance.
20. As far as the evidence of this witness showing that the person who knocked the door from the outside and in response to his query as to who is there, he replied he is Patade, doesn’t get corroboration from the FIR. His evidence further shows that no sooner he opened the door he sustained knife blow on the right side of the chest at the hands of A-1 but then again this is not so if we go by the contents of FIR and the evidence of PW-1 informant.
21. Pertinently enough, his evidence shows that on raising the shouts and cries, his daughter Mangal reached first followed by his wife and then informant but he directed informant not to come forward. Whereas the evidence of PW-1 informant shows that his mother was first to reach followed by him. His evidence nowhere shows that it was his sister who reached first to his father after hearing his cries. Even this material piece of evidence of PW 2 showing that his daughter, wife and son had reached in succession has come by way of omission and when confronted in the cross-examination he insisted of having said so before the investigating officer during the course of investigation. However, PW-6 investigating officer in his cross-examination in para 16 has clearly proved this omission by stating that this witness had not stated before him during the recording of his statement that when he cried his daughter Mangal reached first in point of time followed by wife and son and that he asked his son not to come out from the house.
22. The material omission, as noted above, is a clear pointer to the fact that PW-1 informant was nowhere near the door as is claimed by informant. Rather, it would appear that he remained inside the house and did not venture to come out as he was asked by his father not to come out in view of the assault made on his person by the assailants. Therefore, reasonably there was no occasion except hearing voice of those persons, for the informant to see the assailants. It is also not the case of prosecution that the informant had identified the accused by their voices when they gave a call from outside to him and his family members to open the door.
23. Another aspect which cannot be lost sight of, admittedly, is that A-1 was not known to PW 2. Even though his statement recorded under section 161 of Cr.P.C. shows that at that time he had given the necessary descriptions of the accused but in the cross-examination at para 9 he categorically denied of having given description of the accused. Assuming that he had not given the description then the natural question arises as to why he did not give the descriptions of the accused who had assaulted him and more particularly when those persons were not known to him. Be that as it may, the fact remains that his examination-in-chief is totally silent as to identification of A-1 in test identification parade although he happened to be there nor any reasons are given therefor.
24. It must be noted here that the incident in question took place on 23/07/1984 whereas the evidence of this witness came to be recorded on 12/01/2000. It is quite baffling that despite lapse of 16 years he was still able to identify A-1 before the Court. This is something which is quite indigestible and unbelievable.
25. The above being the discouraging shape of evidence, we are not prepared to accept the evidence of PW-2.
26. Learned Additional PP during the course of argument lamented and criticized the approach of trial Court in not accepting the evidence of medical officer. PW-5 Dr. Manik Ramnarayan Chitlange stated in his evidence (Exh.13) that at the relevant time he was attached to Rajawadi Hospital. At the very initial part of his examination-in-chief it is stated that he is unable to tell as to who had examined the injured person in connection with C.R. No. 192/84 of Vikhroli Police Station. It appears from the evidence that since the medical officer, who treated PW 2- injured, was not traceable this witness was called along with the medical papers pertaining to the treatment given to PW-2 after the incident. Although, he stated that certificate was issued by the hospital but expressed inability to identify signature of the doctor. In our considered opinion, the learned trial Court rightly ignored the evidence of this witness inasmuch as this witness had no occasion to see the injuries and give treatment to PW-2 injured. All that he proved in his evidence is that the certificate was issued from the hospital. Therefore, much cannot be read in the evidence of this witness.
27. One of the circumstance relied on by the prosecution is the recovery under Section 27 of the Indian Evidence Act at the instance of A-1. The recovery was in respect of weapon of offence, namely, a knife.
28. Section 27 of the Indian Evidence Act comes into operation only:
1) if and when certain facts are deposed to as discovered in consequence of information received from an accused person in the police custody;
2) if information relates distinctly to the fact discovered. Needless to say the utility of section comes to the fore when some material object is produced from somewhere in consequence of some information given by the accused. The discovery of fact is not to be confused or equated with the recovery of incriminating material object, such as, weapon of assault etc. But the fact discovered includes not merely the object found but also the place where it lay and the accused’s knowledge as to the place.
29. The above being the legal requirement, it is now time to go through the evidence of PW6- investigating officer. At
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the outset, we may note from the evidence of investigating officer that the panchas who rendered their services at the time of preparation of discovery panchanama and the discovery thereto being dead could not be brought before the Court. Therefore, the only evidence in respect of discovery is of evidence of investigating officer. 30. PW-6 stated in his evidence (Exh.16) that after arrest of A-1 on 14/08/1984 and while he was in his custody A-1 desired to make a voluntary statement in connection with weapon used. Accordingly, in the presence of panch witnesses his statement came to be recorded. Thereafter, accused, police staff and panch witnesses went to his house. The accused took them in his bedroom and produced one knife which came to be seized (Exh.21 and 21-A). This is the only evidence in respect of alleged discovery. 31. The evidence of investigating officer dose not give semblance of discovery of fact i.e. place of concealment of knife, in consequence of statement made by the accused. There was no immediate cause of the discovery for want of revealment of place wherefrom the knife was recovered. Quintessentially, there was no discovery of fact as contemplated by section. There is thus every escape from the conclusion that it was A-1 who had kept the knife concealed there. Therefore, the evidence of investigating officer on the point of discovery cannot be read with a sense of satisfaction and necessarily needs to be rejected. 32. We have minutely scanned the ocular as well as medical evidence and are of the firm view that there is no scope of deviation from the well reasoned findings and conclusions arrived at by the learned trial Court. Interference is, therefore, unwarranted. 33. In view of above observations, since no ground(s) to interfere with the judgment exists, the appeal preferred by the State is hereby dismissed. 34. Bail bonds, if any, stand cancelled.